The liberal blog of Matthew Rozsa, a PhD student of American history at Lehigh University. As a political columnist, his work has appeared in more than half a dozen publications, among them PolicyMic, "The Morning Call," "The Newark Star-Ledger," "The Trenton Times," "The Express Times," and university newspapers for Bard College and Rutgers-Newark.
He can be reached at mlr511@lehigh.edu.

Wednesday, May 27, 2009

Sotomayor's Shaky Record on Abortion Rights

The Republican's hard right has many clever psychological tricks in its book of political chicanery, many of which have had such a detrimental impact on American discourse that their destructive consequences are still felt today. One such trick is to accuse Democrats whose views on a given topic are quite obviously centrist and accuse that individual of being excessively liberal. The effect of this tactic is to push the nation's ideological spectrum as far to the right as possible - when people and positions that are decisively moderate or even conservative are falsely accused of being too liberal, the knee-jerk reaction among Democrats is to defend themselves by making the individual in question even more conservative, thereby not only reinforcing the idea that being too liberal is a "bad" thing, but also increasing the volume of liberal positions that can be branded as "radical" and likewise making more and more of the conservative movement's ideas seem not dogmatic, but rather "mainstream". In short, by knowingly exaggerating the extent to which individual Democrats are "liberal", Republicans make it harder for left-wing positions to be given the respect they deserve, while simultaneously making it easier for right-wing beliefs to be taken for granted as simple "assumptions" about what is and isn't permissible in American political life.

Such is the tactic being used by Republicans now to combat Sonia Sotomayor's nomination to the Supreme Court. Anti-abortion groups and right-wing pundits everywhere are decrying her as radical when in fact her position on some key abortion rights issues are not only decisively un-liberal, but should be worrisome to abortion rights advocates who understand the Supreme Court's vital role in preserving a woman's right to choose. Take this succinct article from the Christian Broadcasting Network's blog (there are many other sources that have reported the same information, but I thought for the purposes of this piece material from a right-wing venue would be most fitting):

Back in 2002, Supreme Court Nominee Sonia Sotomayor wrote an opinion AGAINST a pro-choice group. It involved the controversial Mexico City policy. Read a summary of the case below from the the SCOTUS Blog.

The case was called, "Center for Reproductive Law and Policy vs. Bush.

"Although Sotomayor has not had a case dealing directly with abortion rights, she wrote the opinion in Center for Reproductive Law and Policy v. Bush, 304 F.3d 183 (2d Cir. 2002), a challenge to the “Mexico City Policy,” which prohibited foreign organizations receiving U.S. funds from performing or supporting abortions. An abortion rights group (along with its attorneys) brought claimed that the policy violated its First Amendment, due process, and equal protection rights. Relying on the Second Circuit’s earlier decision in Planned Parenthood Federation of America, Inc. v. Agency for International Development, which dealt with a virtually identical claim, Sotomayor’s opinion rejected the group’s First Amendment claim on the merits. Turning to the plaintiffs’ due process claim, Sotomayor held that they lacked standing because they alleged only a harm to foreign organizations, rather than themselves. Sotomayor held that the plaintiffs did have standing with regard to their equal protection claim, but she ultimately held that the claim failed under rational basis review because the government “is free to favor the anti-abortion position over the pro-choice position” with public funds."

Even Sotomayor's defenders admit that she hasn't made any rulings on abortion-related matters during her lengthy career on the bench. This single case constitutes the sole example of how Sotomayor may be expected to rule on reproductive rights should that issue be brought to the desk of the Supreme Court, and it not only disproves the dissembling rants of the right-wingers who accuse her of being rabidly pro-choice, but outright contradicts it.

This should be very worrisome to liberals, and particularly to supporters of a woman's right to choose. Let us remember that there is a long history of presidents making Supreme Court appointments with the idea that they would adhere to one ideological agenda, only to be shocked when they make an about-face and ascribe to a completely different set of views. The most famous example is Earl Warren, the conservative California governor and 1948 Republican vice presidential candidate who was appointed Chief Justice of the court by President Eisenhower in 1953 with the idea that he would push that judicial body to the right, only to go on and lead the Court in making some of its most progressive legal rulings ever on issues ranging from civil rights to free speech (Eisenhower later rued his selection of Warren, citing it as one of the worst mistakes of his presidency). Other examples include Sandra Day O'Connor, selected by President Reagan because he knew the Senate would feel compelled to make her the first female Supreme Court judge regardless of her supposed conservatism, only to discover after being confirmed that she was more moderate, and David Souter (the judge Sotomayor will be replacing if she gets through), who was chosen by President Bush Senior for his reputed rock-ribbed New Hampshire conservatism before siding with liberals on most major points.

It is true that these three examples all wound up benefiting the liberal movement, and through it the country as a whole. Yet what is to say that this same principle can't work in reverse? What makes liberals believe that the same errors of judgment which caused lefties-in-right-wing clothing to get appointed couldn't also cause a conservative to slip by under the guise of being a liberal?

This is what should give pause to liberals who are otherwise eager to support the first Latina ever to be nominated to the Supreme Court, particularly when it comes to Sotomayor's shady record on abortion rights. A woman's right to choose has been upheld by the court by the narrowest of margins over the years, and with deep red states continuing to overturn those rights, it is inevitable that we will soon see an abortion rights case brought to the attention of this country's most powerful bench. If Sotomayor is confirmed, and if the anti-abortion ruling she rendered in 2002 is any suggestion of how she will rule on abortion rights as a whole, there is every reason to worry that her replacement of Souter (who was pro-choice) could ultimately jeopardize Roe v. Wade. Liberals would be well-advised to learn from history.